370 NLRB No. 45
Aspirus Keweenaw
370 NLRB No. 45
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Aspirus Keweenaw and Michigan Nurses Association,
Petitioner. Case 18–RC–263185
November 9, 2020
DECISION ON REVIEW AND ORDER REMANDING
BY CHAIRMAN RING AND MEMBERS KAPLAN, EMANUEL,
AND MCFERRAN
Since the onset of the Covid-19 pandemic, the Nation-
al Labor Relations Board has endeavored to maintain
continuity of operations in order to carry out its statutory
mission under these unprecedented circumstances. This
has included conducting representation elections, where
the Board has permitted the expanded use of mail-ballot
elections in a series of unpublished orders.
While the Covid-19 pandemic indisputably warrants
mail-ballot elections in appropriate circumstances, the
Board’s existing precedent strongly favors manual elec-
tions. Manual elections permit in-person supervision of
the election, promote employee participation, and serve
as a tangible expression of the statutory right of employ-
ees to select representatives of their own choosing for the
purpose of collective bargaining, or to refrain from doing
so. These reasons remain valid today and continue to
support the Board’s longstanding preference for manual
elections. Additionally, although Regional Directors are
afforded discretion in determining whether a manual or
mail-ballot election is appropriate, that discretion must
be exercised within the guidelines and parameters estab-
lished by the Board, which include its preference for
manual elections. Accordingly, as in the past, we issue
this published order to set forth the guidelines and pa-
rameters applicable to determining the propriety of a
mail-ballot election under the current circumstances.
On August 17, 2020,1 the Regional Director issued a
Decision and Direction of Election directing a mail-
ballot election due to “the extraordinary circumstances
presented by the COVID-19 pandemic at this time.”
Thereafter, in accordance with Section 102.67 of the
Board’s Rules and Regulations, the Employer filed a
timely request for review of the Regional Director’s De-
cision and Direction of Election, contending that the Re-
gional Director abused her discretion in directing a mail-
ballot election; the Employer also requested a stay of the
election. On August 25, the Board issued an order stay-
ing the election and granting the request for review, as it
1 All dates 2020 unless otherwise noted.
raised substantial issues warranting review.2 Thereafter,
the Employer filed a brief on review.
Having carefully considered the entire record in this
proceeding, including the brief on review, we take this
opportunity to provide guidelines regarding the circum-
stances that would normally suggest the propriety of a
mail-ballot election in light of the Covid-19 pandemic.
As discussed in more detail below, although we reaffirm
the Board’s longstanding policy favoring manual elec-
tions, we outline six situations that suggest the propriety
of mail ballots due to the Covid-19 pandemic. When one
or more of these situations is present, a Regional Director
should consider directing a mail-ballot election. Because
this guidance should be applied to present conditions to
determine the propriety of a mail-ballot election in this
case, we remand this case to the Regional Director.
Background
The Employer (the Hospital) operates an acute-care
hospital in Laurium, Michigan, located in Houghton
County, which is in Michigan’s Upper Peninsula. On
July 17, the Petitioner filed a petition to represent a unit
of approximately 69 registered nurses at the Hospital. In
lieu of a hearing, and because the only disputed issue
was whether the election should be conducted manually
or via mail ballot,3 the parties signed a “stipulated rec-
ord” on August 3. Subsequently, the Employer submit-
ted a statement of position requesting a manual election;
the Petitioner did not submit a statement of position.
The Employer argued that a manual election was war-
ranted based on the Board’s preference for manual elec-
tions, the relatively low level of Covid-19 cases in
Houghton County and the Upper Peninsula, the safety
measures it had implemented at its facility (as well as its
willingness to comply with the suggested manual elec-
tion protocols set forth in General Counsel Memorandum
20-10 (GC Memo 20-10)), the fact that Region 18 was
no longer under mandatory telework, and the absence of
“lockdown orders.”
The Regional Director, however, concluded that a
mail-ballot election was warranted based on the extraor-
dinary circumstances presented by the Covid-19 pandem-
ic. First, she cited the current state of the pandemic in
Wisconsin (the location of the Board Agent who would
conduct the election and through which s/he would trav-
el) and Michigan, with particular attention to Houghton
County and the Upper Peninsula. She also commented
that the state of the pandemic was especially concerning
2 370 NLRB No. 13 (2020).
3
Election arrangements, including election type, are non-litigable
matters. See Board’s Rules and Regulations Sec. 102.66(g)(1).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2
given that the Upper Peninsula is a rural area with lim-
ited hospital capacity.
Next, the Regional Director relied on Federal, State,
and local guidance, including the U.S. Centers for Dis-
ease Control and Prevention’s (CDC) recommendation to
limit in-person contact “as much as possible” and Michi-
gan Governor Gretchen Whitmer’s executive orders rec-
ommending that any work capable of being done remote-
ly in the Upper Peninsula be performed remotely. Fur-
ther, the Regional Director observed that a manual elec-
tion would require travel by the Board agent and party
representatives, in contrast to CDC advice to avoid travel
and Wisconsin Department of Health Services’ recom-
mendation that “Wisconsinites cancel or postpone all
travel, including travel within the state.”
The Regional Director also considered the fact that this
election involves healthcare workers at an acute-care
hospital with greater exposure to Covid-19 who could
amplify outbreaks should they become ill. And finally,
the Regional Director cited “uncertainties” a mail-ballot
election would avoid, including the possibility of asymp-
tomatic or presymptomatic individuals participating in
the election and exposing others to the virus; the possi-
bility that voters would be deprived of their vote in a
manual election should they test positive for, display
symptoms of, or have to be quarantined due to Covid-19;
and the uncertainty over when the foregoing guidance
and circumstances might change. The Regional Director
acknowledged the Employer’s willingness to abide by
GC Memo 20-10 and the other protective measures the
Employer had offered to take, but nevertheless concluded
that safety concerns favored a mail-ballot election, given
that such an election would not subject Board Agents,
parties, voters, or the public to any additional risk.4
Discussion
The Historical Use of Mail Ballots in
Representation Elections
“Congress has entrusted the Board with a wide degree
of discretion in establishing the procedure and safeguards
necessary to insure the fair and free choice of bargaining
representatives by employees.” NLRB v. A.J. Tower Co.,
329 U.S. 324, 330 (1946). Within the guidelines it has
established, the Board in turn has delegated to the Re-
gional Directors discretion over the arrangements for an
election, including whether it should be conducted by
manual balloting or mail ballot. Halliburton Services,
4 The Regional Director also noted that there was no contention that
the addresses of eligible voters were not known or up to date, that there
was no evidence that mail service in Wisconsin and Michigan has been
disrupted, and that the Region had already successfully conducted a
number of mail-ballot elections during the pandemic.
265 NLRB 1154, 1154 (1982); National Van Lines, 120
NLRB 1343, 1346 (1958).
The Board’s current principles governing manual ver-
sus mail-ballot determinations are as follows.5 First, the
Board has a long and proud tradition of conducting elec-
tions by manual balloting. London’s Farm Dairy, Inc.,
323 NLRB 1057, 1057 (1997). Given the value of hav-
ing a Board agent present at the election—a circumstance
which is not possible in mail-ballot elections—the
Board’s longstanding policy is that representation elec-
tions should, as a general rule, be conducted manually,
either at the employees’ workplace or some other appro-
priate location. San Diego Gas & Electric, 325 NLRB
1143, 1144 (1998). Under this policy, the applicable
presumption favors a manual, not mail-ballot, election.
Nouveau Elevator Industries, Inc., 326 NLRB 470, 471
(1998).
The Board’s recent experience further supports this
longstanding policy. Internal Board statistics reflect that
from October 1, 2019 through March 14, 2020, the Board
conducted 508 manual elections in which 85.2 percent of
eligible voters cast a ballot; during that same period, the
Board conducted 48 mail-ballot elections in which only
55.0 percent of eligible voters cast a ballot. Similarly,
from March 15 through September 30, the Board con-
ducted 46 manual elections in which voter turnout was
92.1 percent and 432 mail-ballot elections in which turn-
out was 72.4 percent. Although these statistics reflect
that the mail-ballot participation rate has increased dur-
ing the Covid-19 pandemic, they also reflect that the
mail-ballot participation rate continues to lag significant-
ly behind the manual election participation rate (30%
lower before March 15, 20% lower since). Thus, in addi-
tion to the value of having a Board agent present, manual
elections tend to promote greater participation in the
election process.6
Second, a Regional Director’s discretion in this area
“is not unfettered and is to be exercised within certain
guidelines.” San Diego Gas, supra at 1144. Under San
Diego Gas, at least three situations
5
The Board is open to addressing the normal criteria for mail-
balloting in a future appropriate proceeding. We note, however, that by
their nature mail-ballot determinations that rely on circumstances creat-
ed by the Covid-19 pandemic do not involve the normal criteria for
mail-balloting.
6 The statistics set forth above are derived from data furnished by
the General Counsel’s Division of Operations Management.
To be clear, although the generally lower voter turnout in mail-ballot
elections supports the Board’s historic preference for manual elections,
it is not a relevant consideration in assessing whether a Regional Direc-
tor has abused his or her discretion by directing a mail-ballot election in
a specific case. We also recognize that the very circumstances that
ordinarily support conducting a mail-ballot election may affect voter
participation.
ASPIRUS KEWEENAW
3
normally suggest the propriety of using mail ballots: (1)
where eligible voters are “scattered” because of their
job duties over a wide geographic area; (2) where eligi-
ble voters are “scattered” in the sense that their work
schedules vary significantly, so that they are not present
at a common location at common times; and (3) where
there is a strike, a lockout, or picketing in progress.
Id. at 1145 (internal footnote omitted). If any of these situa-
tions exist, a Regional Director should also consider the
desires of all the parties, the likely ability of voters to read
and understand mail ballots, the availability of addresses for
employees, and what constitutes the efficient use of Board
resources. Id. Although a Regional Director may consider
other relevant factors in determining election type, “in the
absence of extraordinary circumstances,” Regional Direc-
tors are normally expected to exercise discretion within the
foregoing guidelines. Id.
Third, within the parameters established by the Board,
a Regional Director has discretion to conduct an election
by mail ballot, given that the Board’s election standards
must be adapted to the “peculiar conditions” of each
case. National Van Lines, supra at 1346. A Regional
Director’s determination to conduct an election manually
or by mail is subject to an abuse-of-discretion standard.
Id.; San Diego Gas, supra at 1144 fn. 4.; see also Nou-
veau Elevator, supra at 471 (upholding a Regional Direc-
tor's direction of a manual election, even though the
Board itself might have directed a mail-ballot election,
absent a showing that the direction constituted an abuse
of discretion).
The Impact of the Covid-19 Pandemic on
Representation Elections
Prior to the Covid-19 pandemic, the Board had no oc-
casion to further define the “extraordinary circumstanc-
es” referenced in San Diego Gas, let alone to articulate
guidelines for Regional Directors to use in determining
election method under such circumstances. The onset of
the pandemic, however, requires the Board to provide
such guidance.
Like the pandemic itself, the Board’s approach to con-
ducting elections during this time has evolved. Follow-
ing the closure of Board headquarters on March 12 and
three regional offices on March 15 due to possible
Covid-19 exposure, on March 16 the Board instituted
mandatory Agency-wide telework until at least April 1.7
Then, on March 19, the Board suspended all representa-
tion elections, including mail-ballot elections, through
and including April 3 “[d]ue to the extraordinary circum-
7
See
https://www.nlrb.gov/news-outreach/news-story/nlrb-
announces-agency-wide-telework-until-april-1.
stances related to” the pandemic, deeming this action
necessary to ensure the health and safety of Board em-
ployees as well as members of the public involved in the
election process.8 This suspension also provided the
General Counsel with the opportunity to fully review the
logistics of the election procedures in light of the unprec-
edented situation.
On April 1, the Board announced that the General
Counsel had advised that appropriate measures were
available to permit elections to resume in a safe and ef-
fective manner “which will be determined by the Re-
gional Directors” and that, accordingly, elections could
resume on April 6.9 Similarly, on April 17, the Board
issued an operational status update advising the public
that representation petitions were being processed and
elections conducted by regional offices. It also stated
that:
Consistent with their traditional authority, Regional Di-
rectors have discretion as to when, where, and if an
election can be conducted, in accordance with existing
NLRB precedent. In doing so, Regional Directors will
consider the extraordinary circumstances of the current
pandemic, to include safety, staffing, and federal, state
and local laws and guidance.10
Following the resumption of elections on April 6, Re-
gional Directors began directing an unprecedented num-
ber of mail-ballot elections. In virtually all such deter-
minations, the Regional Directors reasoned that Covid-
19 presented “extraordinary circumstances” within the
meaning of San Diego Gas. The Board’s first opportuni-
ty pass on such a determination was Atlas Pacific Engi-
neering, 27–RC–258742, 2020 WL 2374506 (May 8,
2020) (not reported in Board volumes). In denying re-
view of the Regional Director’s mail-ballot determina-
tion in that case, the Board stated it was relying on “the
extraordinary Federal, State, and local government direc-
tives that have limited nonessential travel, required the
closure of nonessential businesses, and resulted in a de-
termination that the regional office charged with con-
ducting this election should remain on mandatory tele-
work.”11 Board orders denying review of mail-ballot
8
See
https://www.nlrb.gov/news-outreach/news-story/national-
labor-relations-board-suspends-representation-elections-through.
9 See https://www.nlrb.gov/news-outreach/news-story/nlrb-resumes-
representation-elections.
10
See
https://www.nlrb.gov/news-outreach/news-story/covid-19-
operational-status-update.
11 The Board also remarked that the Regional Director’s principal
concern in directing a mail-ballot election appeared to be the safety of
Agency personnel and that it shared these concerns, although it also
noted that internal Agency considerations had not previously been
found to constitute extraordinary circumstances that would warrant
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4
determinations in subsequent weeks contained the same
language.12
By mid-June, most Regions (as well as Board head-
quarters) were no longer on mandatory telework, alt-
hough most Agency employees continued teleworking on
a permissive basis. Anticipating that it would soon be
possible to more frequently conduct manual elections
safely in at least some localities, on July 6, the General
Counsel issued GC Memo 20-10, which set forth sug-
gested protocols for conducting manual elections safely
and efficiently. That memo reiterated that Regional Di-
rectors have the authority
to make initial decisions about when, how, and in what
manner all elections are conducted. They have made,
and will continue to make, these decisions on a case-
by-case basis, considering numerous variables, includ-
ing, but not limited to, the safety of Board Agents and
participants when conducting the election, the size of
the proposed bargaining unit, the location of the elec-
tion, the staff required to operate the election, and the
status of pandemic outbreak in the election locality.
The memo also recognized that the pandemic was evolving,
that circumstances accordingly could change, and that ulti-
mately “the decisions on election procedures and the safety
of all participating in an election remain in the sound discre-
tion of the Regional Director.”
Given these changes to the Agency’s operating status
and the guidance available to Regional Directors, the
Board’s approach to requests for review of mail-ballot
determinations also evolved. Thus, in cases where the
Board denied review of mail-ballot determinations made
after the expiration of mandatory telework and the issu-
ance of GC Memo 20-10, the Board stated that it was
relying “on the extraordinary circumstances resulting
from the Covid-19 pandemic” and would “continue to
consider whether manual elections should be directed
based on the circumstances then prevailing in the region
charged with conducting the election, including the ap-
plicability to such a determination of the suggested pro-
tocols set forth” in GC Memo 20-10.13 Up to the present,
this has remained the Board’s approach in those cases in
conducting a mail-ballot election outside of the guidelines specified in
San Diego Gas.
12 In addition, in responding to arguments that mail-ballot determina-
tions could result in disenfranchisement of voters if ballots were de-
layed in the mail, the Board indicated in several cases that “such con-
cerns could be relevant to whether a mail-ballot election is appropri-
ate,” but declined to find an abuse of discretion on such a basis. See,
e.g., Touchpoint Support Services, LLC, 07–RC–258867, 2020 WL
2527091 (May 18, 2020) (not reported in Board volumes).
13 See, e.g., Brink’s Global Services USA, Inc., 29–RC–260969,
2020 WL 4004648 (July 14, 2020) (not reported in Board volumes).
which it has denied review of mail-ballot determina-
tions.14
As the foregoing account illustrates, the guidance
available to Regional Directors as to whether to direct a
mail-ballot election has, to date, been limited and rela-
tively general. Such an approach was warranted while
the emergency situation unfolded. But the pandemic has
continued to evolve since July, with parts of the country
reopening at various stages and some employees physi-
cally returning to work. Moreover, guidance from public
health agencies has also evolved as more is learned about
how the virus spreads. Consistent with the foregoing,
there are many circumstances in which a mail-ballot is
unquestionably the safest means of conducting an elec-
tion, and we are mindful that there remain new outbreaks
and resurgences in areas seeking to reopen. There are
also now circumstances, however, in which manual elec-
tion can be safely conducted. We note that some Re-
gional Directors have gradually resumed directing (or
approving stipulations providing for) manual elections.15
Further, the Board’s experience in this area now encom-
passes over two dozen cases in which parties have sought
review of mail-ballot determinations based on a wide
range of potentially relevant considerations.
Use of Mail Ballots in Representation Elections During
the Covid-19 Pandemic
In view of changing pandemic conditions and the
Board’s increasing experience in this area, as well as its
longstanding preference for manual elections, we have
decided to set forth more specific and defined parameters
under which Regional Directors should exercise their
discretion in determining election type against the back-
drop of Covid-19. Specifically, we find that, when de-
ciding whether to conduct a mail-ballot election or a
mixed manual-mail ballot election due to the Covid-19
pandemic, Regional Directors should take into considera-
tion the following situations. If one or more of these
situations is present, that will normally suggest the pro-
priety of using mail ballots under the extraordinary cir-
cumstances presented by this pandemic.
(1) The Agency office tasked with conducting the elec-
tion is operating under “mandatory telework” status
As described above, the regional offices (including the
subregional and resident offices) tasked with conducting
the Board’s representation elections previously were on
mandatory telework due to the Covid-19 pandemic. The
goal of mandating telework was to reduce interpersonal
14 See, e.g., Savage Services Corp., 21–RD–264617, 2020 WL
5878267 (Oct. 1, 2020) (not reported in Board volumes).
15 Internal Board statistics indicate that, as of October 17, approxi-
mately 50 manual elections have been held since March 15.
ASPIRUS KEWEENAW
5
contact that might lead to the spread of the virus. Ac-
cordingly, it was appropriate for Regional Directors to
direct mail-ballot elections where the Agency offices at
issue were in mandatory-telework status, and—as noted
above—the Board denied review of Regional Directors’
mail-ballot determinations in those cases.16
Since mid-June, the Agency’s offices have all been on
permissive, rather than mandatory, telework. The pres-
ence and severity of Covid-19 in any given geographical
area can surge or resurge relatively rapidly, however, and
even where infection rates are otherwise low, the pres-
ence of a single potentially-infected individual at a Re-
gional Office may require mandatory telework while the
employee is tested and the office is cleaned.17 Thus, it
remains possible that a given office could again be
placed on mandatory telework in response to the pan-
demic. Should that eventuality come to pass, the same
considerations that warranted denying review in previous
cases in which the office responsible for conducting the
election was on mandatory telework will once again sug-
gest the propriety of a mail-ballot election.
(2) Either the 14-day trend in the number of new con-
firmed cases of Covid-19 in the county where the facility
is located is increasing, or the 14-day testing positivity
rate in the county where the facility is located is 5 per-
cent or higher
In many cases, including this one, Regional Directors
have considered both broad and narrow trends regarding
Covid-19 cases—such as nationwide, state, and/or coun-
ty-level statistics—in directing mail-ballot elections.18
Similarly, Regional Directors have relied on statistics
with varying degrees of temporal proximity to the date of
an election.19 Although statistical data regarding infec-
16 See, e.g., Atlas Pacific Engineering, supra; Touchpoint Support
Services, LLC, supra.
17
See,
e.g.,
https://www.nlrb.gov/news-outreach/news-
story/temporary-closure-of-two-regional-offices-due-to-possible-covid-
19;
https://www.nlrb.gov/news-outreach/news-story/updates-on-nlrb-
office-closures.
18 See, e.g., TDS Metrocom, LLC,18–RC–260318, 2020 WL
3451872 (June 23, 2020) (not reported in Board volumes) (Decision
and Direction of Election dated May 29, 2020) (Regional Director cited
recent increase in cases and deaths at the state level); PACE Southeast
Michigan, 07-RC-257046, 2020 WL 4584253 (Aug. 7, 2020) (not
reported in Board volumes) (Decision, Order Severing Cases and Di-
rection of Election dated July 17, 2020) (Regional Director relied on
national, state, and local trends); Daylight Transport, LLC, 31–RC–
262633, 2020 WL 4901763 (Aug. 19, 2020) (not reported in Board
volumes) (Decision and Direction of Election dated Aug. 12, 2020)
(Regional Director cited an “ongoing surge” in confirmed cases at the
county level).
19 See, e.g., Perdue Foods, LLC, d/b/a Draper Valley Farms, 370
NLRB No. 20 (2020) (citing longer-term data) (Decision and Direction
of Election dated Aug. 31, 2020); ClarkWestern Dietrich Building
Systems, LLC, 01–RC–264014, 2020 WL 5576848 (Sept. 16, 2020)
tion rates may often have some bearing on the appropri-
ateness of a mail-ballot election, the type, scope, and age
of that data may limit a given statistical measure’s rele-
vance. For example, given the significant variations in
the prevalence of Covid-19 from locality to locality,
broad trends like statewide statistics may be of question-
able use in assessing the safety of conducting a manual
election at a specific facility, at least when more local-
ized data is available. Likewise, the total number of cas-
es in a given locality since the pandemic’s onset may
offer only limited insight into current conditions in that
locality.
To best assess whether safety needs dictate a mail-
ballot election, Regional Directors should generally fo-
cus their consideration on recent statistics that reflect the
severity of the outbreak in the specific locality where the
election will be conducted. Thus, a mail-ballot election
will normally be appropriate if either (a) the 14-day trend
in the number of new confirmed Covid-19 cases in the
county where the facility is located is increasing, or (b)
the 14-day testing positivity rate in the county where the
facility is located is 5 percent or higher.20
Regarding the 14-day trend in the number of new con-
firmed Covid-19 cases, the President’s “Guidelines for
Opening Up America Again” uses this measure to evalu-
ate whether pandemic conditions in an area are improv-
ing, deteriorating, or remaining stable.21 County-level
14-day-trend information is also readily accessible
online.22
Regarding the 14-day “percent positive” or “positivity
rate,” this statistic is based on the number of positive and
total tests in the locality, as opposed to raw numbers of
confirmed cases, and therefore is at least suggestive of
transmission rates in the locality among people who have
not been tested.23 The World Health Organization
(WHO) adopted this measure in its May 12 guidelines
for “reopening”—and also articulated the 5 percent
(not reported in Board volumes) (relying on total rates of infection)
(Decision and Direction of Election dated Aug. 31, 2020); SunSteel,
LLC, 19–RC–261739, 2020 WL 4501460 (Aug. 4, 2020) (not reported
in Board volumes) (relying on statewide increase in cases in the month
before the decision) (Decision and Direction of Election dated July 21,
2020); PACE Southeast Michigan, supra (citing increase in cases in the
tri-county area where the employer’s facilities are located during the
14-day period before the decision).
20 For either statistic, the 14-day period should be measured from the
date of the Regional Director’s determination, or as close to that date as
available data allow. We acknowledge that some flexibility may be
required on this count, particularly with respect to the positivity rate.
21 See generally https://www.whitehouse.gov/openingamerica/.
22 County-level data should be accessed at https://coronavirus.
jhu.edu/us-map.
23
See
https://www.jhsph.edu/covid-19/articles/covid-19-testing-
understanding-the-percent-positive.html.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6
threshold—and Johns Hopkins University tracks this
measure on a state-by-state level.24 At least some states
also track this measure on a county-level basis.25
If either of these measures is met, this suggests that the
virus is spreading in that locality, and the interest in pub-
lic safety will ordinarily indicate the propriety of a mail-
ballot election.
Regarding both of the above measures, we recognize
there may be some instances where the use of either
broader regional data or narrower intracounty data is
more relevant to a particular case.26 For example, if
some or all of the work force comes from areas outside
the county, it may be appropriate to consider data from
those other areas; conversely, where the county covers a
large geographic area or has widely varying Covid-19
rates, city-level or other intracounty data may be more
relevant than countywide data. Although we have identi-
fied county-level data as our preferred metric, we do not
mandate that Regional Directors use any particular geo-
graphic level of data where better, more applicable, data
exists, and we encourage the Regional Directors to cite
with explanation the best available geographic statistical
measure in making their determinations.
The question of whether geographically broader or
narrower statistical measures provide a better basis for
making a mail-ballot determination will necessarily be
determined on the specific facts of each case. Regional
Directors should include in their decision the most recent
available county-level data regarding the 14-day trend.
The decision should also include the most recent county-
level testing positivity rate, where available or, if not
available, the most recent state-level testing positivity
rate. A Regional Director’s direction of a mail-ballot
election based on these measures, consistent with the
principles stated above, will be sustained, unless a party
contending that the Regional Director should have relied
on a different geographic measure presented that data to
the Regional Director as part of its submission regarding
election arrangements and establishes that the Regional
Director’s reliance on the geographic measures cited
above was an abuse of discretion.27
24 See https://coronavirus.jhu.edu/testing/testing-positivity.
25 See, e.g., Georgia Department of Public Health County Indicator
Report
(10/19/2020),
available
at
https://countyindicatororeport
.s3.amazonaws.com/county_indicator_report_probable_10192020.html
#laboratory-tests. County-level positivity rate data should be obtained
from official state or local government sources. In cases where county-
level data are not available, Regional Directors should look to state-
level data for the state in which the facility is located. See fn. 24.
26 Broader regional data or narrower intracounty data should be from
official state or local government sources.
27 Consistent with Sec. 102.66(g) of the Board’s Rules and Regula-
tions, the parties are entitled to present their position “on the type,
If, based on the specific facts of a given case, a Re-
gional Director directs a mail-ballot election based on a
different geographic measure than the county-level (or,
where applicable, state-level) data discussed above, the
decision should articulate the basis for relying on that
measure. The Regional Director’s direction of a mail-
ballot election based on that measure will be sustained
unless a party contending that the Regional Director
should have relied on a different geographic measure
presented that data to the Regional Director as part of its
submission regarding election arrangements and estab-
lishes that its geographic measure is a more reliable
measure of the health and safety risks associated with a
manual election in the circumstances of that case.28
(3) The proposed manual election site cannot be estab-
lished in a way that avoids violating mandatory state or
local health orders relating to maximum gathering size
In order to prevent the spread of the virus, many state
and local governments have enacted mandatory re-
strictions on gatherings. Regional Directors have relied
on limitations in gathering size in directing mail-ballot
elections.29 Conducting a manual election that cannot
reasonably be conducted without violating mandatory
restrictions on gathering size would be at cross-purposes
with these restrictions. We therefore conclude that it will
not be an abuse of discretion if Regional Directors direct
mail-ballot elections in such situations.30 However, non-
mandatory guidance, such as the guidance on which the
Regional Director in this case relied, will not, by itself,
be a sufficient reason to direct a mail-ballot election.31
date(s), time(s), and location(s) of the election and the eligibility peri-
od” but the hearing officer “shall not permit litigation of those issues.”
28 For the purposes of this decision, we need not address whether
other statistics, or different measures (such as the 7-day, as opposed to
14-day, positivity rate) may also be relevant.
29 See, e.g., ClarkWestern Dietrich Building Systems, LLC, supra
(Regional Director expressed doubt that a manual election could com-
ply with Connecticut’s limitation on indoor gatherings to 25 people).
30 In evaluating this factor, Regional Directors should be mindful
that release schedules are an established procedure for managing the
progress of voters. See NLRB Casehandling Manual (Part Two) Rep-
resentation Proceedings, Secs. 11330-11330.5. Such procedures should
be considered, where appropriate, as a means of alleviating Covid-19
concerns related to maximum gathering-size restrictions.
31 Apart from restrictions on gathering size, many states and locali-
ties have issued health orders related to travel, including quarantine
requirements. The Regional Director relied on such orders here. Board
agents traveling to conduct an election are Federal Government em-
ployees performing an essential service, however. Accordingly, Re-
gional Directors should not direct a mail-ballot election based on travel-
related provisions that are not applicable to travel for that purpose. We
leave open the question of how health orders purporting to restrict
travel by Federal employees on essential government business should
bear on a mail-ballot determination.
ASPIRUS KEWEENAW
7
(4) The employer fails or refuses to commit to abide by
the GC Memo 20-10 protocols
As discussed previously, GC Memo 20-10 sets forth
suggested protocols for conducting manual elections
safely and efficiently, while also expressly retaining Re-
gional Directors’ discretion to make case-by-case deter-
minations regarding the method of election. Although
the Employer in this case stated that it would abide by
GC Memo 20-10’s suggested protocols, in other cases
that have come before the Board, employers have been
unwilling to make such an unqualified commitment.32
These protocols are designed to ensure manual elections
can be conducted safely and efficiently, and the memo
indicates that each of its specific protocols must be in-
cluded in an election agreement or decision and direction
of election providing for a manual election. We shall
therefore require employers who are requesting manual
elections to unequivocally commit to abide by all of GC
Memo 20-10’s suggested protocols. An employer’s fail-
ure or refusal to commit to abide by all of the suggested
protocols will therefore ordinarily support the direction
of a mail-ballot election.33
In some cases, employers have proposed safety proto-
cols beyond those specified in GC Memo 20-10. Lauda-
ble though such proposals may be, it is also crucial that
the Board retain its status as the neutral facilitator of rep-
resentation elections, which involves, among other
things, avoiding the impression that a party, rather than
the Board, has control over the election process.34 There-
fore, Regional Directors should be careful not to approve
manual election arrangements, whether or not related to
the GC Memo 20-10 protocols, that would create the
impression that any party controls employee access to the
Board’s election processes or that would otherwise inter-
32 See, e.g., Sea World of Florida, LLC, 12–RC–257917, 2020 WL
5658311 (Sept. 22, 2020) (Request for Review dated Sept. 14, 2020)
(denying review where employer did not actually assert that it would
comply with GC Memo 20-10, but rather asserted that it would imple-
ment every “practicable” consideration in that memo and would work
with the Region and the petitioner regarding any additional concerns).
33 In keeping with this guideline, an employer requesting a manual
election should provide specific details, in its initial submission to the
Regional Director, about how it will comply with GC Memo 20-10’s
protocols. If, notwithstanding the employer’s stated willingness to
abide by all protocols, the Regional Director deems the employer’s
initial submission to be lacking in sufficient specificity, the Regional
Director should offer the employer an opportunity to promptly cure any
such defects. Although Regional Directors are not required to engage
in extensive discussions regarding, or any negotiations over, election
arrangements, they should not reject manual-election proposals based
solely on technical, superficial, or inadvertent noncompliance with the
GC Memo 20-10 protocols when minimal additional communication
could cure the noncompliance.
34 Cf. Alco Iron & Metal Co., 269 NLRB 590, 591–592 (1984);
Monroe Mfg. Co., 200 NLRB 62, 74 (1972).
fere with employee free choice or the fairness of the elec-
tion. Indeed, if an employer insists on procedures that
could reasonably give the impression that it, rather than
the Board, controls access to the Agency’s election pro-
cesses, it will not be an abuse of discretion for a Regional
Director to direct a mail-ballot election.
(5) There is a current Covid-19 outbreak at the facility or
the employer refuses to disclose and certify its current
status
A current Covid-19 outbreak at the facility where the
manual election would occur poses potential health and
safety issues for everyone who participates in the elec-
tion. GC Memo 20-10 requires that employers certify,
between 48 and 24 hours before a manual election, how
many individuals present in the facility within the pre-
ceding 14 days have tested positive for Covid-19 (or are
awaiting test results, are exhibiting characteristic symp-
toms, or have had contact with anyone who has tested
positive in the previous 14 days). These certifications,
however, take place after the direction of a manual elec-
tion and only shortly before the election itself. The pres-
ence of Covid-19 at the employer’s facility is also direct-
ly relevant to whether a manual election should be di-
rected in the first place. Accordingly, for the duration of
the pandemic, we require that in all cases where a party
requests a manual election, the employer shall certify, by
affidavit, as part of its submission regarding election
arrangements, how many individuals present in the facili-
ty within the preceding 14 days have tested positive for
Covid-19 (or are awaiting test results, are exhibiting
characteristic symptoms, or have had contact with any-
one who has tested positive in the previous 14 days).
The Employer must also supplement its initial submis-
sion and certify any changes to the facility’s Covid-19
status after a manual election is directed, up to the day of
the election itself. Based on these certifications, the de-
termination that there is a Covid-19 outbreak at the em-
ployer’s facility or the employer’s failure or refusal to
provide the required certifications will ordinarily indicate
the propriety of a mail-ballot election.35
(6) Other similarly compelling considerations
While the Board has herein enumerated five situations
that will ordinarily indicate the propriety of a mail-ballot
election, these situations are not exclusive or exhaustive.
If a Regional Director directs a mail-ballot election based
on other circumstances related to the Covid-19 pandem-
ic, the Board will consider at that time whether those
35 In this regard, however, the Regional Director should not rely
solely on the hypothetical possibility that an employee might become
infected in the period between the direction of election and the election
itself.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8
circumstances similarly warrant an exception to its pref-
erence for manual elections.
In sum, we find that if any of the five specific situa-
tions set forth above, or other similarly compelling con-
siderations, are present, Regional Directors should con-
sider directing a mail-ballot election. To be sure, Re-
gional Directors must continue to exercise their discre-
tion in this area; the foregoing situations do not require a
mail-ballot election. Instead, we conclude only that a
Regional Director who does direct a mail-ballot election
under the foregoing situations will not have abused his or
her discretion.
Application of the Board’s Covid-19
Mail-Ballot Guidelines
We find it appropriate to apply the above framework in
this case. In this connection, even assuming that this
framework establishes a “new” standard rather than
merely clarifying an existing one, “[t]he Board’s usual
practice is to apply all new policies and standards retro-
actively ‘to all pending cases in whatever stage.’” Cris-
tal USA, Inc., 368 NLRB No. 141, slip op. at 2 (2019)
(quoting SNE Enterprises, 344 NLRB 673, 673 (2005)).
In representation cases such as this one, the Board’s es-
tablished presumption is to apply a new rule retroactively
unless doing so would work a manifest injustice. Id. In
determining whether retroactive application will work a
manifest injustice, the Board typically considers the reli-
ance of the parties on preexisting law, the effect of retro-
activity on accomplishment of the purposes of the Act,
and any particular injustice arising from retroactive ap-
plication. SNE Enterprises, supra.
Applying those considerations, nothing in the guidance
provided in this decision conflicts with San Diego Gas
and its progeny, nor has the Board previously detailed,
with any great specificity, what factors Regional Direc-
tors should consider in deciding whether to direct mail-
ballot elections in the context of Covid-19—which is
itself a new and unprecedented challenge. Indeed, the
Board has not heretofore issued any published decision
addressing this issue. In that sense, therefore, this is an
unsettled area of the law, and applying the framework set
forth herein in this and other pending cases would not
upset the parties’ reliance on preexisting law. See Alle-
gheny Ludlum Corp. v. NLRB, 301 F.3d 167, 180–181
(3d Cir. 2002) (holding that new standard in unsettled
area was properly applied retroactively). Further, provid-
ing guidance in this context will help accomplish the
Act’s purposes by ensuring that parties are not unneces-
sarily deprived of a manual election—again, the Board’s
preferred method of election—and it “will also serve the
purposes of the Act by bringing immediate clarity and
uniformity to this area of the law.” NBC Universal Me-
dia LLC, 369 NLRB No. 134, slip op. at 7 (2020). Final-
ly, there is no basis for finding that applying the frame-
work in this case will work any injustice.
We will therefore remand this case to the Regional Di-
rector to apply the above framework in the first instance,
taking into account how circumstances have changed
since her decision issued. Because the election has been
stayed, the Regional Director will need to reschedule it.
Further, more than two months have passed since the
Regional Director’s decision. Due to the rapidly evolv-
ing nature of the pandemic, and the likelihood that the
relevant circumstances have changed in the interim, it is
appropriate for the Regional Director to reassess her
mail-ballot determination under current circumstances.
Accordingly, we remand this case to the Regional Direc-
tor in order to reconsider her determination based on the
guidelines set forth above and in light of any changed
circumstances.
ORDER
The Decision and Direction of Election is reversed,
and the case is remanded to the Regional Director for
further action consistent with this Decision.36
Dated, Washington, D.C. November 9, 2020
______________________________________
John F. Ring,
Chairman
______________________________________
Marvin E. Kaplan
Member
_____________________________________
William J. Emanuel
Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, concurring in the result.
Every day we witness again how the Covid-19 pan-
demic has disrupted American life. More than 200,000
lives lost (and counting). Hospitals crowded. Schools
empty. Workers at home—or at risk in the workplace.
In this environment, public institutions and government
agencies—including the National Labor Relations
Board—must rethink some of the basic assumptions un-
derlying the way they operate.
The Board traditionally has assumed that union-
representation elections typically should be conducted in
36 The Board’s August 25, 2020 stay is lifted as of today’s order.
ASPIRUS KEWEENAW
9
person. But, in the face of the pandemic, tradition has
had to give way. The Board’s Regional Directors have
increasingly ordered that representation elections be con-
ducted by mail—and the Board has usually permitted
them to do so.1 Today’s decision is intended to guide the
Regional Directors in exercising their discretion to order
mail-ballot elections. As things now stand, mail elec-
tions likely will remain common (but not universal) until
the pandemic ends.
My colleagues deserve credit for recognizing the reali-
ty of a public health emergency. But, however well-
intentioned, the majority’s decision does not rise to the
demands of the occasion. Indeed, at a time when the
Covid-19 virus is spreading uncontrollably throughout
much of the country, we should stop treating mail-ballot
elections as deviations that must be justified by Regional
Directors case by case. Mail-ballot elections have al-
lowed the Board to process representation election peti-
tions safely and effectively, virtually eliminating the pub-
lic health risks inherent in manual elections. According-
ly, at least until the pandemic is over, the Board should
adopt a default presumption that mail-ballot elections are
appropriate, unless in a Regional Director’s reasoned
judgment the circumstances of a particular case require
in-person voting to achieve the goals of the National La-
bor Relations Act: free, fair, prompt, and accurate repre-
sentation elections.
Further, even when we can see an end to the current
crisis, it is time for the Board to ask itself—and the pub-
lic—whether it is finally time to move beyond manual
elections as the default method. The Board should con-
sider expanding and normalizing other ways to conduct
representation elections on a permanent basis, including
mail, telephone, and electronic voting. Other Federal
agencies, such as the Federal Labor Relations Authority
and the National Mediation Board, have long since
adopted those election methods—it is time for the Board
to bring its elections into the modern age.
1 To recount those changes, as the gravity of the pandemic became
clear in March of this year, the Board briefly suspended all representa-
tion elections—leaving workers, many of whom were experiencing
acute anxiety about the safety and security of their jobs, no means to
effectuate their statutory right to seek representation. On April 1, the
Board resumed processing representation petitions and, explicitly rec-
ognizing the extraordinary circumstances we are in, granted the Board’s
Regional Directors the authority to determine when, where, and how
representation elections would be conducted. Soon thereafter, Regional
Directors resumed conducting elections and about ninety percent of the
time conducted those elections via mail ballot. In August, the majority
granted the employers’ requests for review of the decision to conduct
the election by mail ballot in this case and others.
I.
In San Diego Gas & Electric, the Board expanded the
circumstances under which Regional Directors could
properly order and conduct mail ballot elections. 325
NLRB 1143 (1998). The Board reiterated its traditional
preference for manual elections, explained when a mail-
ballot election typically would be appropriate, and left
open the possibility of unspecified, “extraordinary cir-
cumstances” that also would justify a mail ballot. The
Covid-19 pandemic is obviously an extraordinary cir-
cumstance. The usual rules and presumptions do not
apply. And so—entirely consistent with San Diego Gas
& Electric—it is time to stop framing the question of
whether a mail-ballot election is appropriate in terms of
making an exception to the manual-ballot rule. The pan-
demic is the exception.
Certainly, as an agency of the United States Govern-
ment, the Board must do its part to maximize public
health and safety in carrying out its mission. There has
been consistent, overwhelming agreement among public
health experts that unnecessary gatherings should be
avoided when there are viable alternatives. A manual
election, even with good-faith efforts to maintain safety,
is an unnecessary gathering so long as there is a viable
alternative—which a mail-ballot election typically will
be.
Thus, until the pandemic ends, the strong presumption
should be that a mail-ballot election is appropriate. To
be sure, there may be rare cases where the circumstances
make a manual or mixed manual election the only viable
option—e.g., if mail service in an area is suspended or
disrupted, or voting employees lack a fixed local ad-
dress—or there may be other circumstances when a Re-
gional Director determines that an in-person election is
absolutely necessary to achieve the goals of the Act. But
a clear instruction to Regional Directors that the default
assumption is to conduct elections via mail ballot during
the pandemic provides a bright-line rule that would be
efficient to administer, would further public health poli-
cy, and would be easy for employees, employers, and the
public to understand.
In contrast, trying to determine on a place-by-place,
case-by-case basis whether a mail-ballot election is ap-
propriate is administratively burdensome, invites litiga-
tion, and could increase health risks. The Board’s exper-
tise (and the General Counsel’s) is labor law, not epide-
miology or public health policy. We should be extreme-
ly reluctant then to substitute our judgment for that of
real experts by attempting to craft our own standards for
determining whether it is safe to hold a manual election.
This is especially so when any standards the Board estab-
lishes may be quickly overtaken by events. A pandemic
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10
does not stand still.2 The majority effectively concedes
that the factors it discusses cannot account for the uncer-
tainties that may lie ahead. That is why the better course
is to foster as much certainty and predictability as possi-
ble in representation elections by making mail-balloting
the default, not the exception, until the pandemic ends, as
determined by recognized public health authorities.3
II.
But the Board should look beyond the pandemic, too.
We should recognize how the world has changed since
the Board first began conducting elections in 1935 and
how the pandemic has accelerated those changes. Tele-
work, for example, was already an increasingly common
feature of the American economy. Now many more
businesses have their employees working remotely and
say they may continue this practice permanently.4 The
pandemic has compelled many institutions to fundamen-
tally rethink how they do business. The time is right for
the Board to ask whether our “decisions and rules are
serving their statutory purposes.”5
In particular the Board would be well served to re-
evaluate both its preference for manual elections and its
related antipathy toward absentee voting. The Board’s
preference for holding manual elections at an employer’s
facility made sense historically: that was where the vot-
ers were, and in-person voting was the standard for pub-
2 The majority recently revised the NLRB’s election procedures to
state that Regional Directors should not ordinarily schedule an election
until 20 business days after the direction of election, or at least 4 weeks
later. The most recent explosion in Covid-19 cases demonstrates the
inadequacies in forecasting the health and safety situation in any partic-
ular locale 4 weeks into the future. According to data from the Wash-
ington Post, in the United States on October 1, there were 46,309 re-
ported cases and the number of new cases in most locations was steady
or declining. On October 28th, there were 80,125 cases and newly
reported cases were increasing almost 22% a week. While this was a
(hopefully) uniquely dramatic spike in the spread of the virus, it is a
vivid illustration of the limits of our ability to forecast infections rates.
3 The majority argues that manual elections are preferred because of
the presence of a Board agent to supervise voting. But the Board has
been administering mail ballot elections since 1935 and significant
issues of impropriety have never materialized. See San Diego Gas &
Electric, supra, 325 NLRB at 1146. The majority cites higher turnout
in manual elections versus mail ballot elections. But the voter turnout
for elections held during the pandemic was 92.1% for the 46 manual
and 72.4% for the 432 mail-ballot elections. The significant increase in
mail-ballot participation rates during the pandemic versus pre-
pandemic suggests that there may be room to improve employee partic-
ipation in mail ballot elections as they become normalized and the
Board gains more experience administering mail ballot elections.
4 See, e.g., Katherine Guyot and Isabella V. Sawhill, Telecommuting
Will Likely Continue Long After the Pandemic, April 2020, Brookings
Institute, https://www.brookings.edu/blog/up-front/2020/04/06/telecom
muting-will-likely-continue-long-after-the-pandemic/.
5
Specialty Healthcare & Rehabilitation Center of Mobile, 356
NLRB 289, 289 (2010) (Notice and Invitation to File Briefs).
lic elections.6 But many workers now work at home or
away from any central employer facility, and public elec-
tions are increasingly conducted by mail.
Notably, the Board has taken at least a partial step to-
ward making it easier for more employees to vote in a
Board election. In a recent notice of proposed rulemak-
ing, the Board proposed modifying the Board’s election
procedures to provide absentee ballots to employees who
would otherwise be on military leave.7 But, of course,
there are other legitimate reasons why employees might
be unable to vote in person—and the Board should con-
sider what steps it might to take let those employees have
a voice.8
The Board must also make sure that ballots reflect em-
ployee free choice. Holding an election at the work-
place—a space controlled by the employer, one of the
parties to the election—inherently risks jeopardizing em-
ployee free choice in a way that a neutral site does not.9
In addition, conducting an election in the workplace
while preserving the laboratory conditions needed to
protect free choice is not easy, as the many, many NLRB
decisions addressing election objections illustrate.10 Alt-
hough mail-balloting may present challenges of its own,
it also eliminates these categories of objectionable con-
duct.
Notably, other Federal labor agencies have modernized
their election procedures accordingly. Voting in elec-
tions held by the National Mediation Board, which con-
ducts union-representation elections in the airline and
railroad industries, is done primarily by phone or elec-
tronically, with great success.11 Similarly, in 2010, the
Federal Labor Relations Authority changed its voting
rules to allow electronic voting. Now, its Regional Di-
6 See NLRB Representation Casehandling Manual § 11302.2.
7 85 Fed.Reg. 45553 (July 29, 2020). I was not a member of the
Board then.
8
See, e.g., Versail Mfg., 212 NLRB 592, 593 (1974) (discussing
voter eligibility when employee is on assignment out of town during
election.)
9
See, e.g., 2 Sisters Food Group, 357 NLRB 1816, 1819–1821
(2011), overruled on other grounds by The Boeing Co., 365 NLRB No.
154 (2017); Performance Measurements, 148 NLRB 1657, 1659 (1964)
(continued presence of employer’s president where employees must
pass to vote).
10 See, e.g, Pea Ridge Iron Ore Co., 335 NLRB 161 (2001) (delays
in opening polls); Butera Finer Foods, 334 NLRB 43 (2001) (use of
election observers); Glass Depot, 318 NLRB 766 (1995) (extraordinary
events prevent employees from voting); Milchem, Inc., 170 NLRB 362
(1968) (electioneering while employees are preparing to vote); Interna-
tional Stamping Co., 97 NLRB 921 (1951) (maintenance of voter lists);
Hook Drugs, 117 NLRB 846 (1957) (security of ballot box).
11 Recent scholarship found an 85% participation rate during NMB
elections held between 2010 and 2013. Michael Elsenrath, Effects of
Railway Labor Act Election Rule Changes on Voter Participation and
Unionization Activity. https://journalssagepub.com/doi/abs/10.3141/
2477-01.
ASPIRUS KEWEENAW
11
rectors have the discretion to determine whether employ-
ees vote in-person, by mail, or electronically. The Board
should consider following suit to the extent that it is
permitted to do so.12
Finally, it bears mentioning that, both before and dur-
ing the pandemic, there has been a dramatic expansion of
mail-balloting and early voting in public elections. Be-
fore the pandemic, various states were expanding voting
by mail—including no-excuse absentee voting—and it
has been popular with voters and effective at modestly
increasing turnout.13
Today, every single state in the
nation allows voting by absentee ballot in a variety of
circumstances, and 35 states and the District of Columbia
allow absentee voting with no excuse or based on pan-
demic-related concerns.14 The Board should look at
these models seriously.
12 Since 2011, the NLRB’s annual budget appropriation from Con-
gress has included a policy statement that the agency may not conduct
elections electronically.
Further Consolidated Appropriations Act,
2020, Pub. L. No. 116-94, tit. IV, § 407 (2019).
13 Oregon moved to mail ballots via a 1998 ballot initiative that
passed 69.4% to 30.6%, a 2003 survey found 81% popularity. Priscilla
L. Southwell, Five Years Later: A Reassessment of Oregon's Vote by
Mail Electoral Process, 37 PS: Pol. Sci. & Pol. 89, 90 (2004). In 2018,
Michigan passed a state initiative moving to no excuse mail ballots by a
margin of 66.9%-33.1%.
14 See https://www.vote.org/absentee-voting-rules/.
III.
The National Labor Relations Board has been conduct-
ing elections for 85 years. It is justifiably proud of its
traditions. But if there are better way to do things, then
the Board must open to them—and not only when the
United States is in the middle of a public health catastro-
phe. To its credit, the majority does not ignore reality.
Its decision today is a good-faith effort to accommodate
that reality. For all the reasons I have explained here,
however, we should do more. As their other decisions
demonstrate, my colleagues have been more than willing
to reverse precedent across the whole sweep of labor law
and practice—and, in many dissents, I have argued that
they have gone much too far and in the wrong direction.
Today, in contrast, they do not go far enough.
Dated, Washington, D.C. November 9, 2020
______________________________________
Lauren McFerran,
Member
NATIONAL LABOR RELATIONS BOARD